JUDGMENT : Judgment Debtor filed the present Civil Miscellaneous Appeal against the order dated 05.10.2017 in E.A.No.180 of 2013 in E.P.No.61 of 2010 in O.S.No.648 of 2009 on the file of II Additional Senior Civil Judge, Vijayawada. 2. 1st Respondent, being plaintiff filed suit O.S.N.648 of 2009 against the appellant herein for recovery of an amount of Rs.1,14,795/-, principal being Rs.1,00,000/-. Plaint was presented on 15.06.2009. The address of defendant shown in the plaint is resident of TF/A1, D.No.40-15-19/2, Rajasree Enclave, Brundavan Colony, Labbipet, Vijayawada. Defendant, in the suit, was set exparte. Trial Court decreed the suit on 16.09.2009. 3. Pursuant to decree and judgment, Decree Holder initiated execution proceedings. E.P.No.61 of 2010 was filed on the file of II Additional Senior Civil Judge, Vijayawada under Order XXI Rules 54, 64, 66, 72 and 82 of CPC. Rule 54 attachment was affected on 29.09.2010. On 08.03.2011 Judgment Debtor in E.P. was set exparte. On 27.04.2011, after filing of sale papers and encumbrance certificate proclamation was ordered. After settlement of terms sale notice was ordered to Judgment Debtor on 06.06.2011 and the same was returned unserved with an endorsement “no such named person in that address and whereabouts not known”. On 15.11.2011 Executing Court ordered for steps. On 02.12.2011, publication was ordered to be published in ‘Krishna Herald’. On 03.01.2012 the executing Court set the Judgment Debtor exparte. Decree Holder valued the property at Rs.1,25,000/-, Amin valued the property at Rs.10,50,000/-. As per the Market Value Certificate dated 17.03.2012, value of property is Rs.14,17,900/-. 4. Auction was conducted on 08.11.2012. 2nd Respondent in the appeal became Auction Purchaser. Sale was knocked down for Rs.15,65,000/- and the sale was confirmed on 21.01.2013. Sale certificate was issued on 21.03.2013. As the matter stood thus, the appellant/Judgment Debtor filed E.A.No.180 of 2013 under Order XXI Rule 90 of CPC praying the Executing Court to set aside the sale dated 21.01.2013. 5. 2nd Respondent in the appeal became Auction Purchaser. Sale was knocked down for Rs.15,65,000/- and the sale was confirmed on 21.01.2013. Sale certificate was issued on 21.03.2013. As the matter stood thus, the appellant/Judgment Debtor filed E.A.No.180 of 2013 under Order XXI Rule 90 of CPC praying the Executing Court to set aside the sale dated 21.01.2013. 5. Going by the affidavit filed in support of the said petition, which was filed on 30.04.2013, it was contended interalia that she is not aware of institution of suit or execution proceedings; that endorsement on suit summons would establish that Judgment Debtor is residing at Hyderabad; that substitute service through paper publication in the local newspaper is not a publication in the eye of law; that suit promissory note is forged and fabricated; that a separate application to set aside exparte decree will be filed; that she came to know about the proceedings on 24.04.2013; that auction purchaser and decree holder are close relatives; that as per the Government value, property is valued at Rs.24,08,000/- however, as per market value, its value is Rs.45,00,000/-; that the decree holder made wrong description of property, which amounts to material irregularity; that Decree holder committed fraud in paper publication and conducting sale and hence, the judgment debtor sustained substantial loss and thus, filed the petition to set aside the sale dated 21.01.2013. 6. 2nd Respondent-auction purchaser filed counter on 24.04.2015 and denied the allegations in the affidavit and contended that he sold the property in the month of July, 2014 to the third parties and delivered possession to them. 7. During the enquiry, having been raised material irregularity, for the reasons best known, the judgment debtor neither examined himself or anybody on his behalf nor marked any documents with regard to averments made in the affidavit. 8. On consideration of material available on record, the Executing Court dismissed the application on 05.10.2017. Aggrieved by the said order, the present Civil Miscellaneous Appeal is filed. 9. Heard Sri K.S.Gopala Krishna, learned senior counsel representing Sri T.C.Krishnan, learned counsel for appellant and Sri V.R.Avula, learned counsel for 2nd respondent. 10. Learned senior counsel for the appellant would contend that the executing Court failed to follow the procedure under Order XXI Rule 54(2) of CPC. He also would submit that the paper in which paper publication was made is a local newspaper and it has no wide circulation. 10. Learned senior counsel for the appellant would contend that the executing Court failed to follow the procedure under Order XXI Rule 54(2) of CPC. He also would submit that the paper in which paper publication was made is a local newspaper and it has no wide circulation. He would further submit that no notice was served on judgment debtor under Order XXI Rule 66. Senior Counsel also would contend that D.Hr played and the Judgment Debtor suffered substantial loss and hence, the sale is liable to be set aside. 11. Learned senior counsel relied on the following citations: (i) Desh Badhu Gupta Vs. N.L. Anand & Rajinder Singh, (1994) 1 SCC 131 . (ii) Mahakal Automobiles and Ors. Vs. Kishan Swaroop Sharma, (2008) 13 SCC 113 . (iii) C.Doraswamy Naidu Vs. D.Kanniah in C.R.P.No.3720 of 2013 dated 25.10.2013 of the composite High Court of Andhra Pradesh at Hyderabad. (iv) Ambati Narasayya Vs. M.Subbarao and another, AIR 1990 SC 119 . (v) M/s Neerja Realtors Pvt. Ltd. Vs. Janglu (dead) Thr. Lr, AIR 2018 SC 753 . (vi) Pappasani Narayana Reddy Vs. Mandem Reddappa Reddy, AIR 2005 AP 239 . 12. Learned counsel for 2nd respondent would submit that an application under Article 127 of the Limitation Act to set aside the sale has to be filed within 60 days from the date of sale, however, the application filed under Order XXI Rule 90 of CPC filed on 30.04.2013 is barred by limitation. He would also submit that, mere irregularities, itself is not a ground to set aside the sale under Order XXI Rule 90 of CPC. He would submit that the sale shall not be set aside on the ground of irregularity or fraud in publishing or conducting sale, unless the Court satisfied that judgment debtor sustained substantial injury by reason of such irregularity or fraud. 13. Learned counsel for 2nd respondent relied on the following citations: (i) Shri Radhey Shyam Vs. Shyam Behari Singh, (1970) 2 SCC 405 . (ii) V.V.Narayan Chetty Vs. Nenla Dhanamma, AIR 1984 AP 159 . (iii) Amolok Singh Jain Vs. Satyawathi and others, AIR 1980 DELHI 16. (iv) Electrosteel Castings Limited Vs. U.V.Asset Reconstruction Company Limited and Others, (2022) 2 SCC 573 . (v) Bishundeo Narain and another Vs. Seogeni Rai and others, AIR 1951 SC 280 . (vi) Mohan Lal Vs. Hari Prasad Yadav and Ors., (1994) 4 SCC 177 . 14. (iii) Amolok Singh Jain Vs. Satyawathi and others, AIR 1980 DELHI 16. (iv) Electrosteel Castings Limited Vs. U.V.Asset Reconstruction Company Limited and Others, (2022) 2 SCC 573 . (v) Bishundeo Narain and another Vs. Seogeni Rai and others, AIR 1951 SC 280 . (vi) Mohan Lal Vs. Hari Prasad Yadav and Ors., (1994) 4 SCC 177 . 14. Now, the points that arise for consideration are: 1) Whether the sale, in E.P. 61 of 2010 in O.S.No.648 of 2009, conducted pursuant to the judgment and decree is liable to be set aside on the grounds of material irregularity and fraud? 2) Whether the E.A. filed by J.Dr is barred by limitation? 15. Article 127 of the Limitation Act prescribes limitation for filing application to set aside the sale in execution of decree. The time prescribed is sixty days from the date of sale. 16. In the case on hand, auction was conducted on 08.11.2012. Sale was confirmed on 21.01.2013 and sale certificate was issued on 21.03.2013. However, petition under Order XXI Rule 90 of CPC to set aside the sale dated 21.03.2013 (in fact (sale certificate) is filed on 30.04.2013. In the affidavit filed in support of the petition, except making the averment that she came to know about the proceedings on 24.04.2013 no evidence was let in by the judgment debtor to prove that she came to know about the institution of suit or execution proceedings on 24.04.2013. Mere averment in the affidavit is not sufficient and it should be supported by material particulars or evidence regarding knowledge. However, as observed supra, no evidence was let in by the judgment debtor to prove or substantiate such contention. 17. However, in the case on hand, it was filed beyond 60 days. In this connection, in Mohanlal’s case (supra), the Hon’ble Apex Court held thus: “7. The High Court was thus right in coming to the conclusion that the executing court had no jurisdiction whatsoever to entertain the application purporting to be under Order 21 Rule 89 of the Code after the period of limitation prescribed by Article 127 of the Limitation Act.” 18. Learned senior counsel for appellant would submit that fraud vitiates every solemn act. He would also submit that since the decree holder played fraud, resulted in sale of E.P schedule property, limitation has no application. Learned senior counsel for appellant would submit that fraud vitiates every solemn act. He would also submit that since the decree holder played fraud, resulted in sale of E.P schedule property, limitation has no application. However, in the considered opinion of this Court, mere plea of fraud is not sufficient, and the appellant-judgment debtor must prove the fraud played by the decree holder in execution of decree. He would also submit that notices under Rules 54 and 66 were not served on the judgment debtor and non-service of notices on the judgment debtor would vitiate the execution proceedings and, on that ground, sale is liable to be set aside. 19. For the first time in the grounds of appeal, one of the grounds raised is that decree holder and tenant of judgment debtor colluded together and both of them failed to inform to judgment debtor with an intention to knock away the valuable property at Vijayawada city. The other ground raised is that decree holder is aware of residence of judgment debtor and her husband at Hyderabad and in fact, decree holder is aware of her husband’s mobile number and failed to intimate about filing of suit or execution petition. These grounds were raised for the first time before this Court. Going by the grounds raised before this Court, a tenant has been residing in the house of judgment debtor. 20. The docket endorsements in the execution proceedings would show that on 01.07.2010 batta was paid and the same was allowed. The executing Court issued Rule 54 attachment and notice through Court and registered post. Batta was paid with petition and the same was ordered on 10.08.2010 and to issue notice by 30.09.2010. The endorsement dated 30.09.2010 reads as follows : “Order 21 Rule 54 CPC attachment warrant and notice of JDr not returned, call on 27.10.2010”. The endorsement dated 27.10.2010 is “Order 21 Rule 54 CPC attachment effected on 29.09.2010. Order 21 Rule 54 CPC notice of JDr through Court returned unserved with report “door locked, JDr called absent, for steps”,. E.P. was adjourned to 24.11.2010. Again, the matter was adjourned to 07.02.2011. On that day steps petition was filed and allowed and the executing Court permitted D.Hr to take out notice by way of substituted service by publishing the same in Murali newspaper. On 08.03.2011, attachment effected on 29.09.2010 was made absolute. E.P. was adjourned to 24.11.2010. Again, the matter was adjourned to 07.02.2011. On that day steps petition was filed and allowed and the executing Court permitted D.Hr to take out notice by way of substituted service by publishing the same in Murali newspaper. On 08.03.2011, attachment effected on 29.09.2010 was made absolute. Publication was filed into Court, JDr called absent and he was set exparte and the executing Court ordered to file sale papers and encumbrance certificate. After filing the same, notice under Rule 66 was issued to judgment debtor. The docket endorsement dated 15.11.2011 reads as follows : “Order 21 Rule 66 CPC notice of JDr returned unserved with report ‘no such named person in that address and whereabouts not known’ and the matter was adjourned for steps. On 02.12.2011 steps petition was ordered. Executing Court directed D.Hr to take out service by way of publication in ‘Krishna Herald’ newspaper. After filing publication on 03.01.2022, the executing Court recorded that J.Dr called absent and he was set exparte. The docket endorsement dated 27.07.2011 reads as “Order 21 Rule 66 CPC sale notice of JDr returned unserved with report ‘not residing in that address and whereabouts not known”. The matter underwent 4 or 5 adjournments and eventually, auction was conducted. 21. Thus, a careful perusal of the docket endorsements would disclose that on two occasions i.e. when notice under Rules 54 and 66 CPC were returned unserved, the Executing Court ordered publication and accordingly, Decree holder got the same published in newspapers and filed the same before the Court. On two occasions, docket endorsements show that judgment debtor was set exparte i.e. on 08.03.2011 at Rule 54 stage and on 03.01.2012 at Rule 66 stage. Unless the judgment debtor lead evidence to substantiate her contention that she is not residing at Vijayawada and residing at Hyderabad, mere statement is not sufficient to believe her version. However, as stated supra, no evidence was let in to substantiate the said contention. 22. As can be seen from the docket endorsement, when the notice was sent under Order XXI Rule 54 (Rule 54 (1-A) of CPC, it was returned with an endorsement ‘door locked’. Appendix-E Form 24 prescribes notice to be issued under Order XXI Rule 54 CPC. However, as stated supra, no evidence was let in to substantiate the said contention. 22. As can be seen from the docket endorsement, when the notice was sent under Order XXI Rule 54 (Rule 54 (1-A) of CPC, it was returned with an endorsement ‘door locked’. Appendix-E Form 24 prescribes notice to be issued under Order XXI Rule 54 CPC. The language employed in notice reads as follows: “Whereas as you failed to satisfy the decree passed against you, on the 16th day of September, 2009 in suit O.S.No.648 of 2009 in favour of decree holder. It is ordered that you the said judgment debtor are hereby prohibited/restrained until further orders of the Court from transferring or charging the property specified in the schedule hereunder annexed by sale, gift or otherwise and that persons and they are hereby prohibited from receiving the same by purchase or gift or otherwise. It is also ordered that you should attend the Court on 30.09.2010 to take notice of the date fix for settling the terms of the Proclamation of Sale. Given under my hand and seal of the Court this the 6th day of September, 2010.” 23. The contention of the learned senior counsel that two separate notices are to be served one under Order XXI Rule 54 and the other under Order XXI Rule 54(1-A) CPC and the failure of the executing court to send these notices amounts to material irregularity and thus the sale is liable to be set aside lacks merit. A perusal of the notice extracted above would indicate that the prohibition of alienation under Rule 54 and further directing J.Dr to attend the Court under Rule 54(1-A) is included in form i.e. Form No.24 in Appendix-E of CPC. Notice sent to the J.Dr is available is the file. This court perused the copy of the notice. The notice would indicate about attachment as also directing the J.Dr to attend the Court on the day specified. Thus, executing Court followed the procedure contemplated under Order XXI Rule 54 and 54(1-A) in its letter and spirit. Since, the notice is a composite notice no separate notices are required. 24. This court perused the copy of the notice. The notice would indicate about attachment as also directing the J.Dr to attend the Court on the day specified. Thus, executing Court followed the procedure contemplated under Order XXI Rule 54 and 54(1-A) in its letter and spirit. Since, the notice is a composite notice no separate notices are required. 24. Though the learned senior counsel relied upon judgment of learned single judge of composite High Court in Pappasani’s case, about requirement of two separate notices, in the considered opinion of this Court, in view of the language employed in Form No.24 of Appendix-E, two separate notices are not issued when the notice contain attachment as well as date to appear before the Court. J.Dr is informed about attachment of property. J.Dr is further directed to attend the Court on the day fixed. Thus, the contention of learned senior counsel that sale is liable to set aside allegedly on the ground non-service of notice falls to ground. 25. The judgment relied on by learned senior counsel in Ambati Narasayya’s case (supra) dealt with Order XXI Rule 64 of CPC and it is not applicable to the facts of this case, since the property attached and sold in public auction is a flat. 26. In Desh Badhu Gupta’s case (supra), the Hon’ble Apex Court dealt with service of notice under Order XXI Rule 54 (1-A) of CPC and came to the conclusion that service of notice on judgment debtor is mandatory. In the case on hand, as discussed supra, notices were duly served under Order XXI Rules 54, 54 (1-A) and 66 of CPC. Since the notices were duly served, this Court does not find any irregularity in the sale. 27. In Mahakal Automobiles’s case (supra), the Hon’ble Apex Court after considering Desh Badhu Gupta’s case, reiterated issuance of notices at the stages of Rules 54 and 66 of CPC. Since the executing Court issued notices at all stages, this Court does not find any irregularity in conducting the auction. 28. In C.Doraswamy Naidu’s case (supra), learned single Judge of the composite High Court came to conclusion that the decree holder played fraud on the Court in brining the entire property to sale. Since the executing Court issued notices at all stages, this Court does not find any irregularity in conducting the auction. 28. In C.Doraswamy Naidu’s case (supra), learned single Judge of the composite High Court came to conclusion that the decree holder played fraud on the Court in brining the entire property to sale. In the peculiar circumstances of that case, since the judgment debtor deposited entire amount, considering equity, learned single Judge upheld the orders of the trial Court, whereby sale was set aside. In the case on hand, as can be seen from the facts and discussion made supra, though it was contended by learned senior counsel that fraud was played, it was not duly proved. 29. In M/s Neerja Realtors’s case (supra), the Hon’ble Apex Court considered service of notice when summons were returned unserved. In the case on hand, at the stages of Rules 54 and 66 of CPC, the Court Amin tried to serve summons, however, returned the same with an endorsement that “door was locked and J.Dr is not available”. It is pertinent to mention here that learned senior counsel would contend that a tenant has been residing in the suit schedule property would manifest that once notice is affixed to the door, unless contra is proved, the tenant normally would have informed the landlord. However, it was pleaded that tenant and D.Hr are colluded. Mere statement is not sufficient without any material. In that view of the matter, this Court does not find any illegality in service of notice. 30. In Pappasani Narayana Reddy’s case (supra), learned single Judge of the composite High Court dealt with service of notice under Order XXI Rule 54 (1-A) of CPC. However, as discussed supra, notice in Form No.24 of Appendix-E sent to the judgment debtor would indicate the attachment as well as date of adjournment. In view of the same, the ratio does not apply to the facts of this case. 31. In M/s Jagan Singh & Co. Vs. Ludhiana Improvement Trust & Ors., 2022 LiveLaw (SC) 733, the Hon’ble Apex Court came to conclusion that no sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. 32. 31. In M/s Jagan Singh & Co. Vs. Ludhiana Improvement Trust & Ors., 2022 LiveLaw (SC) 733, the Hon’ble Apex Court came to conclusion that no sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. 32. Unless the judgment debtor proves that the sale is result of fraud or irregularity in publishing proclamation of sale or substantial injury or non-issuance of notice, the sale cannot be set aside. In view of discussion made supra, this Court does not find any irregularity or substantial injury or fraud played by the decree holder. 33. The Amin filed report signed by him on 28.09.2010 stating that on enquiry he came to know that judgment debtor locked the house and the judgment debtor’s whereabouts are not known and hence, notice is affixed to the door. Again, another Amin returned the notice on 04.10.2010 stating that on enquiry, the judgment debtor locked the house and his whereabouts are not known. Hence, the notice sent through registered post is in conformity with the notice sent through Court. 34. When the notice was sent under Order XXI Rule 66 of CPC, it was returned with an endorsement “not residing in that address and whereabouts not known”. In such circumstances, the executing Court has no option except to direct the decree holder to take steps to publish the same in newspapers. Accordingly, on both occasions, it was published in newspapers. The fact that tenant is residing in the premises would also indicate that judgment debtor is aware of the execution proceedings. Unless the judgment debtor, as indicated supra, lead evidence about the collusion of tenant and decree holder, this Court is of the opinion that judgment debtor is trying to take advantage of procedural mischief to frustrate the decree. The executing Court considered the material available on record and dismissed the application filed by the judgment debtor on 05.10.2017. 35. In fact, 2nd respondent-auction purchaser filed counter and contended that he sold the schedule property to third party in July, 2014. Though it was contended that the executing Court did not follow the procedure under Order XXI Rule 64 of CPC, the market value certificate dated 17.03.2012, would indicate that the value of the schedule property is Rs.14,17,900/- and the auction was knocked down to Rs.15,65,000/-. Though it was contended that the executing Court did not follow the procedure under Order XXI Rule 64 of CPC, the market value certificate dated 17.03.2012, would indicate that the value of the schedule property is Rs.14,17,900/- and the auction was knocked down to Rs.15,65,000/-. Decretal amount as on the date of filing of execution petition in the year 2010 is Rs.1,20,860/- and costs. Property put to auction is a residential flat and hence, division of property does not arise. In view of the same, this Court is of the considered opinion that there are no merits in this appeal. Hence, the appeal is liable to be dismissed. 36. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.